South Florida Injury Law Blog

Worksite accidents happen all the time and occasionally result in very serious injuries. In Villalta v. Cornn International, Florida's First District Court of Appeals explains the gross negligence standard, an important issue in deciding who may be liable in the event of a work injury.

Mr. Villalta was working as a drywall finisher for L&W Drywall Services on a project on which the company was a subcontractor when he was tragically killed after falling off a scaffold. The personal representative of his estate sued a number of companies for wrongful death, including L&W and Tropic Aire, an HVAC company that was also working as a subcontractor on the project.

Florida law provides that contractors and subcontractors are immune from suit by an employee of another subcontractor for injuries sustained on a construction project, so long as the employee's company has workers' compensation insurance for its own employees and the injury was not caused by the other company's gross negligence.

The representative claimed that Tropic Aire acted with gross negligence by failing to properly cover a "cut-out" in the floor where Villalta was working or warning him of the danger that the "cut-out" presented. The trial court disagreed, however, finding that the representative failed to present evidence of gross negligence. As a result, the court granted summary judgment to Tropic Aire.

Reversing the decision on appeal, the First Circuit said the trial court improperly weighed the evidence. "[T]he line between simple and gross negligence is often uncertain and indistinct, and in such circumstances the question of whether negligence is simple or gross should ordinarily be resolved by the jury," the court explained. In addition, negligence evidence must be viewed in the light most favorable to the non-moving party (the representative) at the summary judgment stage, according to the court.

As the First District explained, the gross negligence standard encompasses a variety situations in which there is a "a clear and present danger of serious harm," a responsible party is or should have been aware of the danger and the party nevertheless acted in "conscious disregard" of the danger.

Continue reading "Proving Gross Negligence in Florida Worker's Compensation Cases - Villalta v. Cornn International " »

Defendants in Florida personal injury lawsuits often fight intensely over indemnification issues, determining which party is on the hook for any damages awarded. It's also important that the person suing be mindful of these issues, however, as indemnity can determine the amount the person ultimately recovers. In United Rentals v. Mid-Continent Casualty Company, the U.S. District Court for the Southern District of Florida explains the difference between seeking indemnity for a party's own negligence, as opposed to the negligence of someone else.

Mr. Medina was injured in a construction site accident in which he was struck by a boulder that fell out of the bucket of a front end loader operated by Jackson, his co-worker. Gen-X Construction had leased the machine from United Rentals.

Medina sued both companies, Jackson, and other parties for negligence in state court. Specifically, he claimed that Gen-X was negligent in failing to provide a safe work place and failing to properly train Jackson. Against United, he claimed that the company was vicariously liable under the dangerous instrumentality doctrine. The doctrine provides that the owner of an instrumentality that is "peculiarly dangerous in its operation" is liable for injuries caused by the instrumentality's negligent operation by anyone who uses it with the owner's consent.

United, in turn, alleged a number of cross-claims against Gen-X related to its allegation that Gen-X agreed to indemnify all claims against United related to use of the front loader - and to procure insurance in order to do so - when it signed a form rental agreement. Gen-X, on the other hand, defended that the indemnity agreement was invalid because it violated § 725.06, Florida Statutes. This law voids indemnity agreements to the extent that a party seeks indemnity for its own active negligence.

Here, however, the court said that United was seeking to have Gen-X indemnify it for Medina's vicarious liability against the company. "United's claim for indemnification is thus necessarily premised on Gen-X indemnifying United for someone else's negligence (here [Mr.] Jackson's) which does not run afoul of Section 725.06," the court explained. Similarly, the agreement required Gen-X to procure insurance in order to guard against claims alleging negligence by a party other than United. As a result, the court rejected Gen-X's claim that the agreement terms were unenforceable.

Continue reading "Indemnity in Florida Personal Injury Lawsuits - United Rentals v. Mid-Continent Casualty Company" »

Workplace injuries happen every day, especially if you work in a place like a construction site. That's why Florida employers are required to have workers' compensation insurance. As the state's Fourth District Court of Appeal recently explained in Gorham v. Zachry Industrial, Inc., however, an employer that provides workers' comp to an injured employee is generally shielded from being later sued for the injuries. Unless, that is, the company directed the employee to do something it knew was exceedingly likely to cause harm.

Roger Gorham was injured in an accident while working as a rigger on a Florida Power and Light power plant construction site in Loxahatchee. He was part of a crew trying to lift and place a nine-ton wall using two cranes. Gorham was disconnecting shackles from the wall when it was caught in a gust of wind and dragged him to the ground.

The lift had been cancelled a day earlier because winds over 20 miles an hour created a danger that the wall would sway. According to various accounts of the incident, the wind was blowing at somewhere from 12 to 18 miles an hour when the crew attempted the lift the following day.

Gorham sued his employer, Zachry Industrial , for negligence. He claimed that the company should have cancelled the lift because of the wind and did not take adequate measures to protect the workers participating in the lift from injury. A trial court granted summary judgment in the company's favor, ruling that Zachry was immune from suit under the state workers' compensation law.

The Fourth District affirmed the decision on appeal. An employer who provides workers' compensation to an injured employee is generally shielded from a later suit by the employee for the injuries suffered. "Essentially, under this no-fault system, the employee gives up a right to a common-law action for negligence in exchange for strict liability and the rapid recovery of benefits," the court explained. This workers' compensation immunity does not apply, however, to accidents caused by an activity that the employer knew was "virtually certain" to cause injury.

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A construction worker injured by falling debris on the job can proceed with a gross negligence claim against the subcontractor whose employees where handling the material at the time of the accident, according to the U.S. District Court for the Southern District of Florida's recent ruling in Blanco v. Capform.

Jose Blanco suffered permanent brain damage as the result of an accident at a downtown Miami construction site in October 2007. An employee of general contractor Pavarini Construction Company, Blanco was sweeping the ground near the 900 Biscayne Bay project when he was struck by a large piece of metal known as a "taper tie" that fell from the building's fourteenth floor. Blanco was standing outside of the 24-foot area directly below the building that had been taped off, but the taper tie ricocheted off the thirteenth floor before reaching the ground.

Two employees of subcontractor Capform allegedly made a number of mistakes in removing the taper tie, including failing to "tie off" the taper tie - a procedure that likely would have prevented it from falling- using torches in violation of Pavarini policy, neglecting to use a safety net to prevent the tie from falling below the fourteenth floor and declining to block off the entire street below the project.

Blanco sued Capform, alleging that the company's gross negligence caused his injuries and seeking damages for himself and his wife. The company then filed a motion for summary judgment, arguing that Blanco's claim laid out a case for simple negligence, covered under state worker's compensation law.

Florida's Workers' Compensation Act provides that a subcontractor is not liable to an employee of another subcontractor or the general contractor for injuries covered under the statute so long as the subcontractor has worker's compensation insurance for its own employees and the injury was not caused by the subcontractor's gross negligence. Thus, because Blanco was injured while working for Pavarini, his only means of recovery for the injuries is from Pavarini under the FWCA unless Capform committed gross negligence.

Continue reading "Court Says Miami Subcontractor May Have Been Grossly Negligent in Biscayne Construction Accident Blanco v. Capform" »

In Kusherman v. Continental Florida Materials, Inc., the Fourth District Court of Appeal takes on the issue of fault apportionment in Florida personal injury cases.

Harvey Kusherman was injured in an accident on a construction site, where he was directing traffic as a flag man. A driver for Defendant Continental Florida Materials, Inc. - a subcontractor on the construction project - was delivering cement to the site via a truck. The driver was waved on by the construction site foreman while backing the truck out of the site. Plaintiff had his back turned to the truck at the time and did not hear it approaching. He turned around to find the truck approaching him quickly from three or four feet away. The truck knocked Kusherman to the ground and ran over his legs.

He filed a personal injury lawsuit against both Continental Florida Materials and the driver, alleging that the driver's negligence caused the accident. The trial court granted Plaintiff's motion in limine, precluding Defendants from requesting that the jury apportion the share of fault for the accident (that is, the percentage of each party's liability), finding that the company was responsible for the driver's negligence, if proved. The jury entered a $6,590,891 verdict in Kusherman's favor.

On appeal, the court reversed the decision, ruling that the Defendants were entitled to an apportionment of fault regardless of who is ultimately liable for damages. Under Section 768.81, Florida Statutes (2007), " the court shall enter judgment against each party liable on the basis of such party's percentage of fault," in a negligence case.

Furthermore, the Florida Supreme Court ruled in Fabre v. Marin that

Clearly, the only means of determining a party's percentage of fault is to compare that party's percentage to all of the other entities who contributed to the accident, regardless of whether they have been or could have been joined as defendants.

Continue reading "In Florida Construction Accident Cases, the Jury Should Consider the Fault of Everyone Involved - Kusherman v. Continental Florida Materials, Inc. " »